Daily Development for
Friday, August 16, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; REGULATORY TAKINGS; TEMPORARY TAKINGS: A municipal order that completely closed an apartment complex for one year to curtail illegal drug use by tenants and others at the property is a compensable taking.

City of St. Petersburg v. Bowen, 675 So.2d 626 (Fla. 2d DCA 1996).

The city had first argued that a temporary taking was not compensable in inverse condemnation. This issue was on appeal when the Florida Supreme Court resolved this issue in favor of landowners in another case in 1994, and the Court of Appeals thereupon remanded this case back to the trial court.

Landowners did not contest the validity of the city's exercise of its police power in closing the apartment complex, nor did it contest for purposes of this case the validity of the statute under which the city acted nor its application to this property. The sole issue was whether closing the apartment complex constituted a taking for a public purpose which required just compensation under the Fifth and Fourteenth Amendments of the United States Constitution and under Articles I and X of the Florida Constitution.

The city argued that compensation was unwarranted because the city had made a valid exercise of its police power to abate a nuisance. The court disagreed with the city and, citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886 (1992), stated that the government, under the "nuisance" exception, can deny compensation to a property owner for preventing the owner's use of his or her property only if the government can show that the property owner had no reasonable expectation of the proposed use when he or she acquired the property.

Because the city could not make this showing regarding the apartment complex, the city could not prevail under the nuisance exception and must compensate the property owner. The court commented that the law, in its view, was quite clear:

"There can really be no question that by virtue of its closing order, the Nuisance Abatement Board has deprived the Plaintiff of all economic use of this property. The property, a 15 unit apartment building, can be put to no other use during the close down period. If deprived of all economic use, a taking has occurred. The law is equally clear that a temporary taking is compensable . . . The only real issue in this case is whether the nuisance exception is applicable. Prior to the Lucas decision, the nuisance exception argument was a viable defense in many cases, although not automatic. Lucas severely restricted the nuisance exception by limiting it to common law nuisances. . . If the City of St. Petersburg wants to wage a war on drugs in part by means of this type of temporary taking then the City will be required to pay landowners just compensation.

The court characterized the property use undertaken by the landowner was that of apartment complex, and it stated that apartment complexes are not nuisances.

Comment 1: In one respect, of course, the court is patently wrong. In most states, at least, a land use can become a nuisance after it is initiated, depending upon its impact on legitimate uses on neighboring properties.

Further, there is nothing written in the sky that requires that land uses be categorized in general terms (such as "apartment house") to determine whether they are nuisances. If a landlord fails to control the behavior of its tenants or to evict them, and the tenants carry out antisocial acts, there is authority for the proposition that the landlord may be liable under nuisance reasoning. Lew v. Super Ct., 25 Cal. Rptr. 2d 42 (Cal. Ct. App. 1993) (apartment complex - crimes and violence from tenants and visitors); Fisher v. Reno Hotel, Inc., 641 N.E.2d 1155 (Ohio Ct. App. 1994) (hotel - prostitution carried on by hotel guests); Klimkowski v. De La Torre, 857 P.2d 392 (Ariz. Ct. App. 1993) (month-to-month tenant in single family house stores flammable substances). It is the actual use and the impact on neighbors, not the categorical description of the use, that determine whether a given property useage is a nuisance.

Comment 2: But the court may be on to something to the extent that it rules that the landlord has suffered a taking if the landlord has in fact behaved reasonably with regard to management of the complex but the city closes him down because the property remains a drug haven. The property may be a public nuisance, but the landlord is not liable in tort. Under these circumstances, is there an independent basis upon which to conclude that the landowner, rather than the community, ought to bear the special burden of dealing with a national drug epidemic?

The editor is not aware of Supreme Court authority that draws "takings" lines in this area on the basis of the culpability of the landowner. But until recently the concept of common law nuisance was not part of the takings discussion either. There certainly is more to be said on this issue.

Comment 3: This case does not address specifically the "temporary takings issue," as it was resolved in favor of the landowner when the Florida Appeals Court reversed a prior decision for the city without opinion, based upon an earlier Florida Supreme Court decision that might not be directly on point. But another recent case that was the subject of the Daily Development for July 19, 1996, did contest the issue of whether a shutdown of an apartment complex for tenant useage was a taking. Zeman v. City of Minneapolis, 540 N.W.2d 532 (Minn. App. 1995). The Florida court in this case wisely adopted the approach suggested by the editor in that Daily Development. But check the DIRT archives for contrary views of responsible DIRT commentators - most of whom understand the cases better than the editor.

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